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Federal Mediation and Conciliation Service (Activity) and National Association of Government Employees, Local R3-118 (Labor Organization/Petitioner)&nbsp;

[ v05 p28 ] 05:0028(4)CU
The decision of the Authority follows:

5 FLRA No. 4
FEDERAL MEDIATION AND CONCILIATION
SERVICE
Activity
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R3-118
Labor Organization/Petitioner
Case No. 3-CU-39
DECISION AND ORDER CLARIFYING UNIT
UPON A PETITION DULY FILED WITH THE FEDERAL LABOR RELATIONS AUTHORITY
UNDER SECTION 7111(B)(2) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 5 U.S.C. 7101-7135, A HEARING WAS HELD BEFORE A
HEARING OFFICER OF THE AUTHORITY. THE AUTHORITY HAS REVIEWED THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING AND FINDS THAT THEY ARE
FREE FROM PREJUDICIAL ERROR. THE RULINGS ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE BRIEFS FILED BY
THE ACTIVITY AND THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL
R3-118 (HEREINAFTER NAGE), THE AUTHORITY FINDS: THE PETITIONER, NAGE,
SEEKS TO CLARIFY AN EXISTING EXCLUSIVELY RECOGNIZED UNIT OF ALL
NON-SUPERVISORY, NON-PROFESSIONAL EMPLOYEES OF THE FEDERAL MEDIATION AND
CONCILIATION SERVICE NATIONAL OFFICE /1/ TO INCLUDE ALL TEMPORARY
EMPLOYEES AND THE INCUMBENTS OF SEVERAL DISPUTED SECRETARIAL POSITIONS.
THE ACTIVITY CONTENDS THAT THE TEMPORARY EMPLOYEES SHOULD BE EXCLUDED
BECAUSE THEY DO NOT HAVE A REASONABLE EXPECTANCY OF CONTINUED
EMPLOYMENT
AND DO NOT SHARE A COMMUNITY OF INTEREST WITH THE REST OF THE BARGAINING
UNIT. THE ACTIVITY FURTHER CONTENDS THAT THE EMPLOYEES IN THE
RESPECTIVE CLASSIFICATIONS OF SECRETARY (STENOGRAPHY), GS-318-07, IN THE
DIVISION OF ADMINISTRATIVE SERVICES; SECRETARY (STENOGRAPHY),
GS-318-07, IN THE DIVISION OF BUDGET AND FINANCIAL MANAGEMENT;
SECRETARY (STENOGRAPHY), GS-318-09, IN THE OFFICE OF THE DIRECTOR; AND
SECRETARY (TYPING), GS-318-07, IN THE OFFICE OF GENERAL COUNSEL, SHOULD
BE EXCLUDED FROM THE UNIT AS CONFIDENTIAL EMPLOYEES. THESE TWO ISSUES
ARE DISCUSSED SEPARATELY BELOW.
THE TEMPORARY EMPLOYEES
OF THE EIGHT TEMPORARY EMPLOYEES IN THE NATIONAL OFFICE OF FMCS AS OF
JUNE 30, 1980, THE STATUS OF ONLY FOUR ARE PRESENTLY AT ISSUE INASMUCH
AS THE RECORD INDICATES THAT THE PARTIES STIPULATED THAT THREE OF THESE
INDIVIDUALS BE EXCLUDED FROM THE UNIT, /2/ AND SINCE THE DATE OF THE
HEARING, A FOURTH INDIVIDUAL EMPLOYED UNDER A ONE-YEAR TEMPORARY
APPOINTMENT HAS LEFT THE ACTIVITY AND HAS NOT BEEN REPLACED.
THE FOUR TEMPORARY EMPLOYEES INVOLVED HEREIN ARE ALICE MILLER, WHO
WAS HIRED UNDER A ONE-YEAR TEMPORARY APPOINTMENT; JOHN COLE AND MARCIA
WHITBY, WHO WERE HIRED ONLY FOR THE SUMMER; AND CALLISTA BESSELLIEU, A
SUMMER AIDE WHO WAS HIRED THROUGH A SPECIAL DISTRICT OF COLUMBIA SCHOOL
PROGRAM.
MILLER IS A GS-2 CLERK-TYPIST. SHE OPERATES AS A "FLOATER", WORKING
WHEREVER SHE MAY BE NEEDED DUE TO A HEAVY WORK LOAD IN A PARTICULAR AREA
OR AN EMPLOYEE'S ABSENCE ON VACATION. WHILE MILLER IS TECHNICALLY UNDER
THE SUPERVISION OF THE DIRECTOR OF PERSONNEL, SHE IS DIRECTLY SUPERVISED
BY THE SUPERVISOR OF THE SECTION WHERE SHE HAPPENS TO BE WORKING. SHE
DOES PRIMARILY THE SAME WORK AS THE ACTIVITY'S OTHER CLERK-TYPISTS AND
RECEIVES BOTH ANNUAL AND SICK LEAVE, BUT IS NOT ENTITLED TO HEALTH
INSURANCE, LIFE INSURANCE, OR RETIREMENT BENEFITS. THE RECORD REFLECTS
THAT MILLER HAS NEVER DISCUSSED THE POSSIBILITY OF PERMANENT EMPLOYMENT
AT THE ACTIVITY, AND HAS RECEIVED NO PROMISE CONCERNING CONTINUED
EMPLOYMENT BEYOND HER ONE YEAR APPOINTMENT. THE UNDISPUTED TESTIMONY
FURTHER INDICATES THAT THERE IS VERY LITTLE PROSPECT OF HER BECOMING A
PERMANENT EMPLOYEE, OR FOR HER REAPPOINTMENT AS A TEMPORARY EMPLOYEE.
THE TWO SUMMER TEMPORARIES, JOHN COLE AND MARCIA WHITBY, ARE BOTH IN
CLERK-TYPIST POSITIONS. DURING THE REST OF THE YEAR THEY ARE FULL-TIME
STUDENTS AT THE UNIVERSITY LEVEL, AND THERE IS NO EVIDENCE IN THE RECORD
THAT THEY HAVE AN INTEREST IN PERMANENT EMPLOYMENT. WHILE BOTH HAVE
WORKED FOR THE ACTIVITY PREVIOUSLY DURING THE SUMMER, NO PROMISE WAS
EVER MADE TO THEM OF EMPLOYMENT FOR THE FOLLOWING SUMMER AND BOTH HAD TO
SUBMIT NEW APPLICATIONS FOR EMPLOYMENT. IN THE COURSE OF THEIR
EMPLOYMENT, THEY DO PRIMARILY THE SAME WORK AS THE OTHER EMPLOYEES IN
THE SECTION WHERE THEY ARE ASSIGNED. HOWEVER, UNLIKE THE OTHER
EMPLOYEES, THEY RECEIVE NO ANNUAL OR SICK LEAVE AND NO LIFE INSURANCE OR
HEALTH BENEFITS.
THE SUMMER AIDE, CALLISTA BESSELLIEU, WAS HIRED THROUGH A SPECIAL
DISTRICT OF COLUMBIA SCHOOL PROGRAM IN WHICH STUDENTS ARE PLACED IN JOBS
DURING THE SUMMERS. SHE IS PAID A MINIMUM WAGE AND DOES NOT HAVE A GS
RATING. THIS POSITION IS FILLED EACH SUMMER, AND THERE IS NO INDICATION
THAT BESSELIEU WOULD HAVE ANY EXPECTATION OF GETTING THE JOB FOR THE
FOLLOWING SUMMER.
UNDER THESE CIRCUMSTANCES, THE AUTHORITY FINDS THAT NONE OF THE
ACTIVITY'S FOUR TEMPORARY EMPLOYEES AT ISSUE HEREIN SHOULD BE INCLUDED
WITHIN THE UNIT SOUGHT TO BE CLARIFIED. ALTHOUGH THE RECORD ESTABLISHES
THAT THE GENERAL WORKING CONDITIONS FOR ALL EMPLOYEES OF THE ACTIVITY
ARE SIMILAR, IT ALSO CLEARLY INDICATES THAT THE TEMPORARY EMPLOYEES AT
ISSUE WERE HIRED FOR A SPECIFIC PERIOD AND HAVE NO REASONABLE
EXPECTATION OF CONTINUED EMPLOYMENT BEYOND THAT PERIOD. ACCORDINGLY,
THE AUTHORITY FINDS, IN THE CIRCUMSTANCES OF THIS CASE, THAT THE
TEMPORARY EMPLOYEES AT ISSUE ARE EXCLUDED FROM THE CERTIFIED BARGAINING
UNIT WHICH SPECIFICALLY EXCLUDES "TEMPORARY EMPLOYEES WITH NO REASONABLE
EXPECTANCY OF CONTINUED EMPLOYMENT."
THE CONFIDENTIAL EMPLOYEES
AS PREVIOUSLY STATED, THE ACTIVITY ALLEGES THAT FOUR EMPLOYEES SHOULD
BE EXCLUDED FROM THE BARGAINING UNIT AS CONFIDENTIAL EMPLOYEES. /3/
SECTION 7112(B)(2) OF THE STATUTE PROVIDES THAT A UNIT WILL NOT BE
APPROPRIATE FOR LABOR ORGANIZATION REPRESENTATION IF IT INCLUDES A
CONFIDENTIAL EMPLOYEE. SECTION 7103(A)(13) OF THE STATUTE DEFINES A
"CONFIDENTIAL EMPLOYEE" AS ONE "WHO ACTS IN A CONFIDENTIAL CAPACITY WITH
RESPECT TO AN INDIVIDUAL WHO FORMULATES OR EFFECTUATES MANAGEMENT
POLICIES IN THE FIELD OF LABOR-MANAGEMENT RELATIONS." THE ISSUE
PRESENTED IN EACH OF THE FOUR INSTANCES HEREIN IS WHETHER THE EMPLOYEE
IN DISPUTE ACTS IN A CONFIDENTIAL CAPACITY TO AN INDIVIDUAL WHO
FORMULATES OR EFFECTUATES MANAGEMENT POLICIES IN THE FIELD OF
LABOR-MANAGEMENT RELATIONS, AND IF SO, WHETHER THE EMPLOYEE ACTS IN A
CONFIDENTIAL CAPACITY TO SUCH INDIVIDUAL WHEN THE LATTER IS PERFORMING
DUTIES IN THE FIELD OF LABOR-MANAGEMENT RELATIONS. SEE RED RIVER ARMY
DEPOT, TEXARKANA, TEXAS, 2 FLRA NO. 82(1980).
MARIE GALLAGHER OCCUPIES THE POSITION OF SECRETARY (STENOGRAPHY),
GS-318-07, IN THE DIVISION OF ADMINISTRATIVE SERVICES, AND IS SECRETARY
TO THE HEAD OF THE DIVISION OF ADMINISTRATIVE SERVICES, DAN FUNKHOUSER.
FUNKHOUSER, APART FROM HIS OTHER DUTIES IN SUPERVISING HIS DIVISION, IS
ONE OF THE THREE MEMBERS OF THE MANAGEMENT NEGOTIATING TEAM WHICH IS
CURRENTLY INVOLVED IN CONTRACTUAL NEGOTIATIONS WITH THE PETITIONER,
NAGE. GALLAGHER'S DUTIES INVOLVE OPENING AND LOGGING INCOMING MAIL;
FILING; PREPARING RESPONSES TO CORRESPONDENCE; HANDLING PROBLEMS
WITHIN THE BUILDING; AND HANDLING LEAVE FOR THE DIVISION EMPLOYEES.
DURING THE COURSE OF HER WORK SHE TYPES BARGAINING PROPOSALS FOR
FUNKHOUSER, TRANSCRIBES NOTES HE WAS TAKEN AT BARGAINING SESSIONS, AND
MAINTAINS A "BARGAINING BOOK" WHICH KEEPS TRACK OF WHAT HAS TAKEN PLACE
AT PREVIOUS BARGAINING SESSIONS AND WHAT MANAGEMENT STRATEGY WILL BE
USED AT FUTURE BARGAINING SESSIONS. BASED ON THE FOREGOING, THE
AUTHORITY FINDS THAT MARIE GALLAGHER, SECRETARY (STENOGRAPHY),
GS-318-07, DIVISION OF ADMINISTRATIVE SERVICES, ACTS IN A CONFIDENTIAL
CAPACITY TO AN INDIVIDUAL WHO IS INVOLVED IN THE FORMULATION AND
EFFECTUATION OF MANAGEMENT POLICIES IN THE FIELD OF LABOR-MANAGEMENT
RELATIONS. ACCORDINGLY, THE AUTHORITY SHALL EXCLUDE THE EMPLOYEE FROM
THE CERTIFIED UNIT REPRESENTED BY NAGE, INASMUCH AS SHE IS A
CONFIDENTIAL EMPLOYEE WITHIN THE MEANING OF SECTION 7103(A)(13) OF THE
STATUTE.
JEAN KUEBBELER HOLDS THE POSITION OF SECRETARY (STENOGRAPHY),
GS-318-07, DIVISION OF BUDGET AND FINANCE, AND IS ONE OF THE TWO
SECRETARIES IN THAT DIVISION. IN THE COURSE OF HER DUTIES, KUEBBELER
DOES MOST OF THE TYPING FOR THE ASSISTANT DIRECTOR FOR BUDGET AND
FINANCE, RICHARD LAULOR, WHO IS THE HEAD OF THE BUDGET AND FINANCE
DIVISION. LAULOR'S DUTIES INVOLVE THE SUPERVISION OF HIS DIVISION. IN
THAT CAPACITY, HOWEVER, LAULOR TESTIFIED THAT HE PLAYS LITTLE PART IN
LABOR-MANAGEMENT RELATIONS WITHIN THE FMCS. KUEBBELER'S DUTIES INCLUDE
LOGGING IN MAIL; TYPING CORRESPONDENCE; TYPING THE BUDGET; AND TYPING
FOR THE OTHER EMPLOYEES IN THE DIVISION. BASED ON THE FOREGOING, THE
AUTHORITY FINDS THAT JEAN KUEBBELER, SECRETARY (STENOGRAPHY), GS-318-07,
DIVISION OF BUDGET AND FINANCE, IS NOT A CONFIDENTIAL EMPLOYEE WITHIN
THE MEANING OF SECTION 7103(A)(13) OF THE STATUTE. ALTHOUGH KUEBBELER
MAY SERVE GENERALLY IN A CONFIDENTIAL CAPACITY TO THE HEAD OF THE BUDGET
AND FINANCE DIVISION, THE LATTER IS NOT INVOLVED IN THE FORMULATION AND
EFFECTUATION OF MANAGEMENT POLICIES IN THE FIELD OF LABOR-MANAGEMENT
RELATIONS. ACCORDINGLY, KUEBBELER IS PROPERLY INCLUDED IN THE CERTIFIED
UNIT.
SANDRA SROKA OCCUPIES THE POSITION OF SECRETARY (STENOGRAPHY),
GS-318-09, IN THE OFFICE OF THE DIRECTOR, AND SERVES AS SECRETARY TO
BOTH THE DIRECTOR'S EXECUTIVE ASSISTANT AND SPECIAL ASSISTANT AS WELL AS
BACK-UP TO THE DIRECTOR'S PERSONAL SECRETARY. SROKA'S PRIMARY FUNCTION
IS TO LOG IN THE DIRECTOR'S MAIL, FORWARD IT TO THE APPROPRIATE PLACE
FOR RESPONSE, AND PROOFREAD AND LOG OUT RESPONSES. SHE ALSO READS ALL
MAIL ADDRESSED TO THE DIRECTOR AND PROOFREADS THE RESPONSES. SROKA
TESTIFIED THAT SHE HAS READ CORRESPONDENCE ON TWO GRIEVANCES, AN EEO
COMPLAINT, SEVERAL COMPLAINTS TO THE MERIT SYSTEMS PROTECTION BOARD,
FOUR OR FIVE UNFAIR LABOR PRACTICE CHARGES, AND SEVERAL AGENCY
RESPONSES. THE RECORD INDICATES THAT WHILE SROKA DOES HAVE ACCESS TO
CERTAIN PERSONNEL OR LABOR RELATIONS MATERIAL, MERE ACCESS TO SUCH
MATERIAL DOES NOT WARRANT THE EXCLUSION OF AN EMPLOYEE FROM AN
EXCLUSIVELY RECOGNIZED UNIT. SEE U.S. ARMY COMMUNICATIONS SYSTEMS
AGENCY, FORT MONMOUTH, NEW JERSEY, 4 FLRA NO. 83(1980). FURTHER, SHE
DOES NOT OTHERWISE ACT IN A CONFIDENTIAL CAPACITY TO AN INDIVIDUAL WHO
FORMULATES OR EFFECTUATES MANAGEMENT POLICIES IN THE FIELD OF
LABOR-MANAGEMENT RELATIONS. BASED ON THE FOREGOING, THE AUTHORITY FINDS
THAT SANDRA SROKA, SECRETARY (STENOGRAPHY), GS-318-09, OFFICE OF THE
DIRECTOR, IS NOT A CONFIDENTIAL EMPLOYEE WITHIN THE MEANING OF SECTION
7103(A)(13) OF THE STATUTE. ACCORDINGLY, SHE IS PROPERLY INCLUDED IN
THE CERTIFIED UNIT.
VICKY NIEMI HOLDS THE POSITION OF SECRETARY (TYPING), GS-318-07, IN
THE OFFICE OF GENERAL COUNSEL, AND IS SECRETARY TO THE ASSOCIATE GENERAL
COUNSEL. NIEMI PERFORMS SECRETARIAL DUTIES FOR THE ASSOCIATE GENERAL
COUNSEL AND FOR TWO ASSISTANT GENERAL COUNSEL. IN THE COURSE OF HER
DUTIES SHE TYPES BRIEFS, AFFIDAVITS, CORRESPONDENCE AND RESPONSES IN
BOTH UNFAIR LABOR PRACTICE AND EEO COMPLAINT PROCEEDINGS INVOLVING THE
FMCS. SHE ALSO ASSISTS IN PREPARING FOR HEARINGS AND TRIALS INVOLVING,
AMONG OTHER THINGS, UNFAIR LABOR PRACTICE COMPLAINTS AND REPRESENTATION
ISSUES. NIEMI ALSO TYPES MEMORANDA AND CORRESPONDENCE FOR THE ASSISTANT
GENERAL COUNSEL WHO SERVES AS CHIEF OF THE MANAGEMENT NEGOTIATING TEAM
AND CHIEF LABOR RELATIONS REPRESENTATIVE FOR THE FMCS. IN THIS
CONNECTION, NIEMI HAS ASSEMBLED THE CHIEF NEGOTIATOR'S BARGAINING BOOK,
DISTRIBUTED DRAFTS OF MANAGEMENT PROPOSALS TO OTHER MEMBERS OF THE
NEGOTIATING TEAM, AND RETYPED THE PROPOSALS TO INCORPORATE THEIR
COMMENTS. SHE ALSO HAS TYPED MEMORANDA TO MANAGEMENT OFFICIALS ON THE
STATUS OF NEGOTIATIONS, AND IS THE ONLY PERSON OTHER THAN THE CHIEF
NEGOTIATOR WHO HAS A KEY TO THE FILE CABINET WHERE THE BARGAINING
MATERIAL IS KEPT. BASED ON THE FOREGOING, THE AUTHORITY FINDS THAT
VICKY NIEMI, SECRETARY (TYPING), GS-318-07, OFFICE OF GENERAL COUNSEL,
SERVES IN A CONFIDENTIAL CAPACITY TO AN INDIVIDUAL WHO IS INVOLVED IN
THE FORMULATION AND EFFECTUATION OF MANAGEMENT POLICIES IN THE FIELD OF
LABOR-MANAGEMENT RELATIONS. ACCORDINGLY, THE AUTHORITY SHALL EXCLUDE
THE EMPLOYEE FROM THE CERTIFIED UNIT INASMUCH AS SHE IS A CONFIDENTIAL
EMPLOYEE WITHIN THE MEANING OF SECTION 7103(A)(13) OF THE STATUTE.
ORDER
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED, IN WHICH
THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R3-118, WAS
CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE ON NOVEMBER 19, 1979, BE AND
HEREBY IS, CLARIFIED BY INCLUDING IN SAID UNIT THE POSITIONS OF
SECRETARY (STENOGRAPHY), GS-318-07, DIVISION OF BUDGET AND FINANCE, AND
SECRETARY (STENOGRAPHY), GS-318-09, OFFICE OF THE DIRECTOR, BUT
EXCLUDING FROM SAID UNIT THE FOUR TEMPORARY EMPLOYEES INVOLVED HEREIN
AND THE POSITIONS OF SECRETARY (STENOGRAPHY), GS-318-07, DIVISION OF
ADMINISTRATIVE SERVICES, AND SECRETARY (TYPING), GS-318-07, OFFICE OF
THE GENERAL COUNSEL.
ISSUED WASHINGTON, D.C., JANUARY 28, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ ON NOVEMBER 19, 1979, NAGE WAS CERTIFIED AS THE EXCLUSIVE
REPRESENTATIVE OF ALL NON-SUPERVISORY, NON-PROFESSIONAL EMPLOYEES OF THE
FMCS NATIONAL OFFICE, EXCLUDING "PROFESSIONAL EMPLOYEES" SUPERVISORS;
MANAGEMENT OFFICIALS; TEMPORARY EMPLOYEES WITH NO REASONABLE EXPECTANCY
OF CONTINUED EMPLOYMENT; AND EMPLOYEES DESCRIBED IN 5 U.S.C.
7112(B)(2), (3), (4), (6) AND (7)."
/2/ IN THIS REGARD, SEE RED RIVER ARMY DEPOT, TEXARKANA, TEXAS, 2
FLRA NO. 82(1980), WHEREIN THE AUTHORITY FOUND (AT N. 2) THAT, IN THE
CONTEXT OF A UNIT CLARIFICATION PETITION, A STIPULATION WILL BE VIEWED
BY THE AUTHORITY AS A MOTION TO AMEND THE PETITION IN ORDER TO DELETE
AND, IN EFFECT, WITHDRAW THE PETITION AS TO THE STIPULATED JOB
CLASSIFICATIONS.
/3/ THE PARTIES AGREED AT THE HEARING THAT THE INCUMBENT OF A FIFTH
POSITION IN THE OFFICE OF ARBITRATION SERVICES WAS NOT A CONFIDENTIAL
EMPLOYEE AND THUS SHOULD BE INCLUDED IN THE UNIT. THEREFORE, SUCH
POSITION IS NOT AT ISSUE BEFORE THE AUTHORITY HEREIN (SEE N. 1, SUPRA).